Respondents are proprietors of certain restaurants in Boise. The appellants are members and officers of the Hotel and Restaurant Employees Local No. 782 of Boise, which is a voluntary unincorporated association, or labor union.
In their complaint, respondents allege:
“That the defendants did on or about the twentieth day of March, 1920, order all of the employees of the plaintiffs then belonging to the said The Hotel and Restaurant Employees Local No. 782 of Boise, Idaho, to strike and cease at once working for or continuing in the employment of the plaintiffs at' the plaintiffs’ said places of business, and in compliance with said order, all of the said employees of the plaintiffs left the plaintiffs’ employment and places of business; that since that date the plaintiffs have endeavored to carry on their said business, and to employ other men and ■women to fill the places of those who left the employ of the plaintiffs, but the defendants, their agents and servants, have in pursuance of said order and a conspiracy and a confederation and combination entered into by and among
“That all of said acts and conducts of the defendants were and are a part of a scheme to prevent persons from entering the employment of the plaintiff, and continuing in their employment, and from patronizing them at their said places of business; that the defendants threatened and intend to continue their said unlawful, wrongful, wilful and malicious acts and conducts, and that they and their agents and servants are now and have been ever since said boycott and picketing were. established a nuisance and ob
Appellants demurred to the complaint. Upon the filing of the complaint, the court issued an order to show cause why an injunction pendente lite should not be granted, and also entered a restraining order requiring that appellants, “ .... absolutely desist and refrain from in any manner interfering with or hindering or obstructing plaintiffs and each and every of them, whether by picketing or otherwise, in the free use and enjoyment and occupancy of their several properties, property rights and business and the conduct thereof; and from entering thereon or therein or in any manner coercing or compelling or inducing or attempting to coerce or induce by any spe.cies of threat, intimidation, force or fraud or violence any employees of plaintiffs or either of them from performing their several duties within the scope of their several employments or service; and from preventing or attempting to prevent by any species of threat, intimidation, force or fraud or violence any person or persons from entering the employment or service of plaintiffs or either of them; and from preventing or attempting to prevent by any species of threat, intimidation, force or fraud or violence, expostulation or entreaty, patrons or prospective patrons of plaintiffs or either of them, or any other person or persons from trading with or transacting business with plaintiffs or either of them and from harassing or annoying them with insults, gibes or jeers or language importing the same or displaying on their person or aloft placards or banners or other emblems or insignia containing covert or open or other threats or intimidations or the like to the annoyance of plaintiffs’ patrons or prospective patrons, or other person or persons, while going about their business to or from or with plaintiffs’ or each and every of them; and from parading in front of or congregating whether singly or collectively, in the vicinity of the entrance to or at or near the premises of the plaintiffs herein and each and every of them, as follows, to wit:
Upon the return day of the order to show cause, appellants filed affidavits to the effect that pickets were instructed to and did walk at least ten feet away from the buildings wherein the business of respondents was conducted, and that they were instructed to and did make no remarks except in an ordinary tone of voice; that not more than two pickets were so engaged at any one time and place, and that for the most part the pickets were waitresses belonging to appellants’^ organization. The affidavits further stated that appellants were not actuated by malice against respondents, and that the picketing was not conducted with the purpose or intent of destroying the business of respondents, or damaging the same; but was conducted for the sole purpose of the economic betterment of the members of the organization as laborers and in pursuance and furtherance of the purposes of the strike; that the means used were not calculated to and did not intimidate any person or persons from exercising their own free will as to patronizing or not patronizing the respondents’ places of business.
Questions similar to those here for review have recently been considered by the supreme court of the United States in the cases of American Steel Foundries v. Tri-City Central Trades Council et al., 257 U. S. -, 42 Sup. Ct. 72, 66 L. ed. (Adv. Op.) 103, and Truax v. Corrigan, 257 U. S. -, 42 Sup. Ct. 124, 66 L. ed. (Adv. Op.) 132. In the latter case it was held that a statute of the state of Arizona, very similar to section 20 of the Clayton Act, 38 Stat. at L.
In the case of Keuffel & Esser v. International Assn. of Machinists et al. (N. J. Eq.),
What was said by the supreme court in the case of Truax v. Corrigan as to the equal protection of the laws can haye no bearing here, since our statute relating to injunctions contains no exceptions as to any classes of persons, but applies alike to all persons within the jurisdiction of the courts of this state. With reference to the due process clause of the federal constitution, the court said:
“A law which operates to make lawful such a wrong as is described in plaintiffs’ complaint deprives the owner of the business and the premises of his property without due process, cannot be held valid under the 14th Amendment.
“The opinion of the state supreme court in this case, if taken alone, seems to show that the statute grants complete
The court was dealing with a statute enacted by the legislature of a state. Whether it was intended to hold that a like limitation exists as to the power of a state, acting through its courts, in giving effect to its common law, is not clear. Mr. Justice Holmes, in his dissenting opinion, alludes to the matter as follows: “I cannot understand the notion that it would be unconstitutional to authorize boycotts and the like in aid of the employees’ or the employers’ interest by statute when the same result has been reached constitutionally without statute by courts with whom I agree.”
A right to conduct a business is property. Incident to-this property right is the goodwill of the business, and the right to appeal to the public for patronage. One may conduct his business in his own way, and may employ whom he will upon such terms as may be agreed upon, and may discharge any employee at will unless restrained by a valid contract so long as he violates no law. These rights are entitled to the protection of the law. But because of the conflicts which sometimes arise between absolute rights, the law does not afford a remedy for every interference with or encroachment upon rights as such.
Those who labor for wages have certain rights equally unquestioned. They may contract for employment on whatever terms they see fit, and unless restrained by a binding contract, may cease employment when they please. They have a right to form unions for the purpose of improving their economic and social conditions, or to refrain from joining such unions if they choose. They have a right to strike in concert when the object of the strike is for their collective benefit. They have a right to acquaint the public with the fact of its existence and the causes thereof, and appeal for sympathetic aid by a request to withhold patronage. (Truax v. Corrigan, supra.)
It is clear that any resort to the primary boycott, if in any degree successful, will result in damage to the business
A combination to strike for the purpose of accomplishing an object which is not regarded as lawful, or the use of illegal means in aid of a lawful strike, are wrongs for which the law affords a remedy. (Duplex Printing Press Co. v. Deering et al.,
In the ease at bar, no question is raised as to the legality of the object for which the strike was called. The question we must decide relates entirely to the legality of the means employed in aid thereof. Speaking generally, the means employed must be free from falsehood, libel or defamation, and from physical violence, coercion or moral intimidation.
“The persuasion that the law permits in these circumstances is such as appeals to the judgment, reason or sentiment, and leaves the mind free to act of its own volition. Where there is no such freedom of action, more than persuasion has been exercised, and it amounts to duress, intimidation, coercion, or other like influence.” (McMichael v. Atlantic Envelope Co.,
In challenging the legality of the means used in this case, respondents -call attention to the language employed by appellant and their representatives in appealing to the public, and also to the stationing of pickets in front of their respective places of business.
Confining our attention first to the language used: We do not think the right of free speech guaranteed by see. 9, art. 1, of our constitution, is directly involved. We are concerned only with the abuse of the freedom of speech. The law accords the remedy of injunction in this class of cases only because of the inadequacy of the ordinary remedies at law.
We think it is clear that the words, “This house is unfair to organized labor,” printed upon a placard, are permissible. The expression “Unfair to organized labor” is a term well understood and is thus defined in Parkinson
The most important question for consideration in this case arises out of the action of the trial court in enjoining
It is claimed by respondents that the pickets were guilty of trespassing upon their property; that although the streets have been dedicated to the use of the public, the title in front of their property to the center of the street is vested in the owner and the dedication is only to the usual and customary user by the public. We are of the opinion, however, that the lawfulness of the use of the streets by appellants must be determined solely by considerations other than those growing out of the ownership of the servient estate. The pickets constitute a portion of the public for whose use the streets were dedicated. The owner cannot object to an unlawful use on their part because of his ownership of the soil, for by the very act of dedication he has divested himself of that right. He must have some other basis for his objection, such, for instance, as the creation of a private or public nuisance. The special rights of free access and egress enjoyed by the owner of abutting property rest upon a different basis.
Our attention has been called to the case of Campbell v. Motion Picture Machine Operators Union (Minn.),
On behalf of appellants it is urged that having a right to acquaint the public with the facts concerning the strike, and to appeal for sympathetic aid, they should be permitted to -make use of this right in the most effective manner, by bringing the knowledge of their dispute with respondents to the notice of intending patrons; that they should be permitted to go where the patrons are most likely to be, and that they are .therefore within their rights so long as they are peaceable and their conduct is not unseemly and so long as they do not obstruct the entrance to or egress from the business houses of respondents. There is much force in this position. But in our opinion it is overcome by the fact that the act of stationing pickets in front of places of business of respondents inevitably leads to results directly opposite to appellants’ intentions and protestations.
It is said that the term “peaceful picketing” involves a contradiction in terms; that the word “picket” carries with it a sinister implication and is selected from the nomenclature of war. (Truax v. Corrigan, supra.) Accordingly, in the case of American Steel Foundries v. Tri-City C. T. Council, supra, it was held that while picketing should be enjoined eo nomine, the defendants in that case would be entitled to station at each point of ingress, or egress from the company’s works, one “missionary.” We are concerned with facts rather than names.
In the case of Pierce v. Stablemen’s Union, Local No. 8760,
Where the principal purpose of picketing is to appeal to the intending patrons, consisting of men, women and children, of a business house, such as a restaurant, we think the following from the opinion in the case of Local Union No. 313 v. Stathakis,
In view of the thought suggested by this quotation, added emphasis is placed upon the allegation of the complaint that prospective patrons of the respondents were deterred by intimidation from entering respondents ’ places of business.
Reference to the notes found in 6 A. L. R. 909, and 16 A. L. R. 230, will direct those interested to many of the authorities dealing with the matters herein discussed.
We come now to the terms of the injunction issued by the trial court. In view of the foregoing discussion, and the facts disclosed by the record, the injunction was broader than is justified. There was no occasion to enjoin the use of force or violence, since none had been used or was threatened. The injunction should not require the appellants to absolutely desist or refrain from in any manner interfering with the business of respondents: Neither should it include every species of expostulation or entreaty.
The case is remanded, with directions to modify the injunction so as to accord with the views herein expressed. No costs awarded.